A generous patron who wishes to remain anonymous has again offered $20 U.S.D. for August's Flash Fiction Challenge winner, to be awarded through PayPal or given to their favorite charity.

THE PREMISE: Arr!!! Unpack your tricorn hat and space suit and batten down the hatches. Come on ye swabs! It's time to bring a spring upon her cable and cast off for the nearest nebula to clash with some pirates. There'll be no quarter given this time.

In this challenge we'll get some practice using stock characters effectively. We'll use pirates, but in a science fiction setting. There's plenty of precedent. Whether we're talking about space pirates who seem to show up where there's a poorly armed space freighter orbiting, or steampunk pirates aboard an airship attempting to dominate the Victorian era skies, or alien pirates swashbuckling on the salty seas of some far off world, pirates are a science fiction staple.

But not all science fiction pirates are created equal. Some will look and talk as if they are transplanted from the 17th century Caribbean or the Barbary Coast. But your science fiction pirates certainly don't have to. As long as your characters are pirates in deed, they'll meet our needs. Even if they don't wear tricorn hats and say "Arr." So let's find our sea legs… er space legs…er... let's weigh anchor and have some fun.

SOME EXAMPLES: The science fiction setting and type of pirates you use in this challenge are up to you. If you need some sources of inspiration, below you'll find some examples that may spark your imagination.

"The Pirates of Ersatz" by Murray Leinster tells the story of Bron Hoddan, a brilliant electrical engineer who grew up on the pirate planet of Zan. During the story Hoddan resorts to space piracy himself several times humorously putting together an ersatz pirate crew to outsmart the planetary forces arrayed against him. This story was originally published in the February, March, and April issues of Astounding Science Fiction in 1959. According to Project Gutenberg, it is now in the public domain. So you can read it here if you like: http://www.gutenberg.org/files/24035/24035-h/24035-h.htmThe cover art from the February issue is worth a look as it depicts a space pirate climbing a ladder with a slide rule in his mouth instead of the stereotypical dagger.

"Yesterday's Glory" by Aphelion's WebMaven and Production Editor, Robert Wynne, is set in the Mare Inebrium on Bethdish and contains, nestled within its romantic framework, the tale of two young men who outwit space pirates. Check it out here: http://www.aphelion-webzine.com/shorts/mare1rob.htm.

Edgar Rice Burroughs' novel Pirates of Venus like ERB's Mars series can be classified as "sword and planet," a subgenre of science fiction where the plot follows a swashbuckling-type adventure that is set on another planet. In this case, the pirates of the title are made up of native Venusians who take up piracy while under the leadership of the novel's protagonist, earthling Carson Napier. These pirates navigate the seas of Amtor, plundering ships with sword and spear even though they have advanced technology and weaponry like r-ray and t-ray guns.

HONING YOUR WRITING SKILL: Since flash fiction is such a short format, we often have to rely on shortcuts to tell a good story. One shortcut would be to make use of stock characters. They are literary stereotypes that have been well established in a given genre. A reader familiar with the genre should have some idea what the stock characters are about without the writer establishing it every time. So in the case of this challenge, you can drop some pirates into your flash story and not waste valuable words explaining their modus operandi. The danger of using stock characters is that they can easily become cliché and, therefore, unconvincing or even silly if they aren't handled carefully.

THE CHALLENGE: So I've tried to leave this one open and give you some examples of possible directions to go. Place some pirates in a science fiction setting of your choosing. Take advantage of these stock characters, but keep them from being cliché. I challenge you to write a science fiction story involving pirates. Good luck, and good writing.

REQUIREMENTS: (1) Your story must be a science fiction or science fiction subgenre story which involves pirates; (2) You must have at least two characters that "talk" to each other in some fashion; (3) 1,000 words or less, not counting title, byline, or "The End"; (4) The characters and story must be fictional and not previously published, even in these challenges; (5) One entry per author; (6) Give your story a title and a byline; and (7) Keep it clean. Rated 'PG-13'. (Basically, think, "Could I see this on CSI?" That allows a lot, really.)

CHARACTERS & SETTING: No copyrighted characters or settings, or references thereto. Famous, non-copyrighted fictional characters like Santa Claus, or religious figures such as the Devil, named angels such as Gabriel, or gods like Thor, etc. as supporting characters at best and at my discretion. The Wicked Witch and Dracula may be in the public domain, but don't expect me to allow them. No person that was ever a "real life" human being may be used as a character, but can be referred to, as in "President Kennedy had declared it would be so." Except as noted above under non-copyrighted fictional persons, character names may not be copied from fiction or real life, even if changed, i.e. Char-less Darween. All non-copyrighted settings are ok. Famous, unique sites like Stonehenge may be used over and again. No fan fiction or sequels, so don't bother putting your story in the Land of Oz or that great place you thought up two challenges ago.

DISQUALIFICATIONS/REFUSALS: If, in my judgment, any requirement or rule is missed, I won't post the story for voting, but authors are free to resubmit with changes until the deadline. Should a story be initially accepted and posted in the challenge, but then later judged by me to be in violation, the story may be disqualified and removed from contention at any time before contest end. Authors who feel a story may be in violation should send me a PM and state their case.

HOW TO ENTER: Stories must be sent by PRIVATE MESSAGE to davidsonhero, and NOT posted into a thread. Just click the 'PM' button at the bottom of this post and paste your story in the message. You are responsible for doing your own formatting, and leave an extra line between paragraphs, just like when you see them in the 'zine. I will allow different colors, but not changed fonts or sizes, artwork, or any other embedded or external links.

DO NOT send a regular email to me.

Stories will be posted "blind"--without the author's name on them. All the story titles are literally tossed into a hat and chosen in random order. When the poll closes after the voting week, I'll post a list of the stories and who wrote them. All entries will then be reposted in the Flash Archive with the author's byline.

Entries from new authors are strongly encouraged. C'mon. Give it a try!

NOTE: ONLY REGISTERED MEMBERS who have posted at least one message may submit a story. Without that one post, the system will not let you send a PM.

DEADLINE: Stories should be in by 9 p.m. Central Standard Time (GMT-6), Sunday, August 18, 2013. The stories will then be posted for voting at approximately 10 p.m. Voting will close on Sunday, August 25th at approximately 9 p.m., GMT-6.

VOTING: Stories are rated on a scale of 0-10 in whole numbers in 6 different categories by filling in scores in a form that is posted by me immediately following the post containing the stories for this challenge. Voters copy and paste the form into a PM and send it to me for tallying. One vote per user (that is, per ip address), and authors may not vote for their own story.

IF YOU WISH TO SCORE A ZERO FOR A STORY, YOU MUST ENTER A ZERO IN THAT POSITION ON THE VOTING FORM. A challenge entrant who does not vote for the other stories will receive a 10% deduction in their own score at the time of contest close, and the other stories will be given marks equalling whatever their story's average is at the time of contest close.

If more than two stories are tied at the end of voting, there will be a succession of one-day runoff votes until a single winner is chosen or the number of winners is reduced to two.

WHAT YOU WIN: Writers get improved short fiction skills, increasing their chances in the marketplace, without the lengthy investment in time a longer story would take. That, as well as bragging rights and pride--there is stiff competition each month amongst some great stories.

LEGAL STUFF: I'll try to do my best lawyer impersonation: By entering this challenge you are technically granting Aphelion: The Webzine of Science Fiction and Fantasy perpetual electronic rights only to post and archive your challenge entry. Aphelion would rather not lay any claim on them at all, but by posting them on a public site, they'd legally count as being published no matter what.

Example story, not eligible for entry:

To Starboard and Edenby John David Rose

Chad looked up the inner wall of the crater, a vast stone curtain that was the backdrop for his life. Near the rim was a permanent bank of clouds and it was there that he trained his eyes. When a ship came in, it was always at the same trajectory so that it could avoid the yellow spires to the north and safely put down in Sulfur Bay.

"Still nothin'?" Dirck asked half-heartedly. He sat on the ground and lazily pulled clumps of the coarse marsh grass out to throw over the embankment into the water.

Chad didn't answer. He just kept scanning the sky and tried not to second guess what they were about to do. He certainly didn't need Dirck's apathy feeding into his already growing doubts. Then all at once, a big one came in, a Banzi pirate frigate. At first as it dropped into the crater the ship was clothed in a gown of clouds with a trailing train of white vapor. But then its gray jagged edges started to poke through. With excitement, Chad counted the cannon batteries that lined the gun deck. Along its hull from stem to stern were two rows of pulsing blue-flamed retrorockets that fought against gravity and inertia. Finally it set down in the murky water and columns of steam billowed up from its superheated hull. Several supply boats set out from Port Calm toward the frigate in a slow procession.

"Come on, it'll be a long swim, but we should be able to get there right before the sutler's loaders," Chad said. He took off his shirt and wrapped it around his head like a bandanna.

"So ye're surely goin' then?" Dirck asked, lazily getting to his feet. His smirk and persistent squint at once suggested both indolence and flippancy.

"Aye, there's nothin' fer me here anymore: a life in my da's field or workin' in the anorthite mine." He looked across the bay at the only way out of the crater, now floating in her steamy bath. But Port Calm was there in the corner of his right eye. The only city he ever knew. And in the governor's villa, he envisioned Neave, beautiful, spoiled Neave, who was also probably lazing in a steamy bath. It had been her choice. She was sure to be much happier with the vintner's son. Chad spat on the ground.

"Do ye still want to come or not?" he growled at Dirck.

"The glory of the stars's got my head turnin' too. B'sides, I hear them Banzi lasses 'ave four…" Dirck motioned over his chest as he grinned.

***

Pulling themselves onto the gangplank unseen was easy enough. The loaders, older men doing a job but keeping their eyes down so as not to meet the gaze of a Banz, didn't notice the two young men slip into line and march along into the strange cold and stale air of the hold. The first Banz they saw was two heads taller than a man. He had gray leathery skin covered with sinister looking tattoos and a wide mouth with stray teeth protruding. He wore a dark red bandanna that was similar to the style popular in Port Calm. But he also wore a black jumpsuit, adorned with valves and hoses, switches and knobs, that Chad rightly assumed was designed to protect against the rigors of space.

"E's a gruesome one!" Dirck whispered as they walked past. Chad wanted to slug his friend. He knew now it was a mistake bringing Dirck; it had reduced his chances of success. It wasn't until they were sneaking down a corridor leading further into the ship that Chad realized it was his own lack of planning that had actually doomed them. Shortly after, the rough hands of the quartermaster presented them to the captain.

"A woman is cap'ain?" Dirck didn't whisper this time.

"What smells of rotten eggs?" the captain asked. Her voice was lilting and slightly seductive. She lounged on a wide bed propped up by embroidered pillows. Her legs were crossed in a business-like manner. She looked at them with derision.

"Found 'em slinkin' in the engine room Cap'ain," the quartermaster said. He was as big as a bulkhead, the most imposing Banz among imposing Banz.

"You," she said pointing at Dirck who hadn't stopped grinning since they entered the cabin. "What were you looking for? Were you trying to scuttle my ship?"

Chad thought about driving his heel into Dirck's foot before he could speak.

"She does have four," Dirck muttered. Too late.

"Quartermaster, where is shore in relation to the ship?" she asked.

"Off port, Mam," the quartermaster replied.

"Then throw him off starboard."

The quartermaster grabbed Dirck by the shoulders and dragged him down the hall. Chad cringed as Dirck screamed his name in desperation.

Chad looked down at the floor afraid to raise his eyes. He could feel the fierceness of her gaze penetrating him. His mouth was dry. Now when it came to it, he could hardly speak.

"The… the stars, Mam. There's nothin' for me here."

"I see," she said. She got up from her bed and walked across the cabin. Like the other Banz she was taller than Chad, but not nearly as large as the males of her species.

"Long ago we brought your people here from another planet to maintain this port for us. From time to time we establish new ports as we expand our territory. It just so happens that we have been planning a new port on the third planet in a yellow star system 4.37 light years from here. Do you have a mate, Chad?"

"A… a mate? N… Neave, I love Neave, but she's chosen someone else."

"We're pirates," she said with a reptilian smile. "We take what we want. And I want you, Chad, and Neave to be the first humans to settle Port Eden."

Since the challenge over at Creator & the Catalyst was the first time I've done historical fiction in a long time, I might have nudged into a tricky zone that I would like to get a rulings clarification on, since it fits my style as a trope. (Darn you Verse, that's going to be a Meme of the Month for me!) My question extends to the Steampunk genre, because it presumably deals with at least some parts of history (the ones that don't include H. G. Wells' lost Airship!)

It arises when a third tier historical figure pops in briefly into a story, and the ruling should have a couple of parts depending upon how prominently.

A. The easy one should be if your historical figure attends a famous gentlemen's club, all the famous people would be there. If the famous person hangs out in a different corner and doesn't speak, I'm presuming that would be allowed.

B. It gets trickier when they get speaking parts. In my story over at C & C, a gent by the name of Captain Randolph Marcy shows up with information and consults with the native Americans and the settlers, with a couple of speaking lines.

I'm guessing that's not allowed in these challenges? How do you avoid even talking to someone famous (or not so famous!) in a Historical setting?

For reference, here's the pertinent rule for this particular challenge: "no person that was ever a 'real life' human being may be used as a character, but can be referred to..."

Bear in mind that if this was strictly an alternate history challenge, I'd give you a lot more leeway with real life historical figures. But I don't think its necessary for this challenge and I want to stick to the rule as given.

So, example A from your question might work, but it's going to depend on how you write your story. If the story in your example was told from a first person POV, for instance, and the character was at the famous gentlemens' club you mention, that character may just make references to the famous people around him without those people becoming characters in the scene and interacting with him. Something like that would probably be acceptable. But you'll have to use your considerable skills as a writer to make it work.

I don't see how example B can work in this case though. If a real historical figure is present in your story, speaking, they are a character. So even if they are peripheral, I'd have to reject it.

In the story you have in mind, is it critical to have real historical people in these roles? Since steampunk is a type of alternate history setting (after all, there really weren't fleets of steam powered airships back then) you could replace (using your example) Randolph Barnes Marcy with a fictional character who did similar things.

You asked "How do you avoid even talking to someone famous (or not so famous!) in a historical setting?" Well, let me ask you, can you write a story that is set in July 2013 without having your characters talk to famous real people? July 2013 is also a historical setting and I'm sure you could come up with a story that occurs last month that doesn't involve famous and/or real people. A story set in the Victorian era isn't any different. Every steampunk tale doesn't have to involve the Queen or President Lincoln directly. While it's not uncommon in steampunk to play with historical figures and its fun to think about the President or Queen personally fending off vampires, I don't think it's a requirement of the genre.

Alternate history might be a fun challenge to do again though. I thought there were some pretty good submissions for the previous alternate history challenge that Nate ran. If there's interest in that again I'll try to work it into a future challenge.

davidsonhero wrote:...I don't see how example B can work in this case though. If a real historical figure is present in your story, speaking, they are a character. So even if they are peripheral, I'd have to reject it.

In the story you have in mind, is it critical to have real historical people in these roles? Since steampunk is a type of alternate history setting (after all, there really weren't fleets of steam powered airships back then) you could replace (using your example) Randolph Barnes Marcy with a fictional character who did similar things.

You asked "How do you avoid even talking to someone famous (or not so famous!) in a historical setting?" Well, let me ask you, can you write a story that is set in July 2013 without having your characters talk to famous real people? July 2013 is also a historical setting and I'm sure you could come up with a story that occurs last month that doesn't involve famous and/or real people. A story set in the Victorian era isn't any different. Every steampunk tale doesn't have to involve the Queen or President Lincoln directly. While it's not uncommon in steampunk to play with historical figures and its fun to think about the President or Queen personally fending off vampires, I don't think it's a requirement of the genre....John

Hallo John, and thanks for getting the discussion going. For now, let's call Steampunk a special case and make sure it doesn't subvert the rule. I also got "lucky" that a naturally written story provided the perfect case example of the problem, which is at its most important in all historical fiction.

I believe it is systemic to Historical Fiction. I'll live with the rules; I just thought it happened to be a useful time to take a glow-bug and shine on this particular rule which hasn't traditionally been in the light!

As I understand Historical Fiction, the problem occurs because "just so darn many people lived!" O. Henry (a recently revived influence on me!) put it well in one story, which I paraphrase here. Some working class man was sighing happily over his drink in a bar, in bliss because he "got to hobknob with ____". Again winking at Verse, I'll have to check the TV trope for "did the research but was scared of lawyers"! It's proportional to how specific a subculture or pioneering event is.

Skipping media stars specifically, in a Small Town sometimes their only claim to fame is one day when ____ stopped by for a year like Captain Marcy did at that canyon. So it's suddenly I'm thrashing through the difference of "being an anonymous face in the crowd" where you "insert your story but it doesn't affect anyone", to "changing who the famous person in a key role actually was".

The results feel different in the story style. I don't have trouble with it in future settings. Doing Historical fiction made it more important to examine. For me it pops up as a direct corollary to research. Heh and unfortunately this month I have a taste of having "second tier people as second tier characters" in historical stories! Before I chopped off my Canyon story and sealed it up for voting, my discarded segment was even worse!

TaoPhoenix wrote:I believe it is systemic to Historical Fiction. I'll live with the rules; I just thought it happened to be a useful time to take a glow-bug and shine on this particular rule which hasn't traditionally been in the light!

I think discussion of this rule would be good. There are certain concerns I have that would have to be alleviated before I made a change to this rule for future contests.

Two issues come to mind:

The first issue is that the flash challenge is a contest. And being a contest I want it to be as fair as possible. We've had an ongoing cash prize from our anonymous patron so there's more than just pride at stake. The rules are in place to try to provide everyone with the same bag of tricks to use in their stories. I've participated a number of times in 48 hour movie projects where the contestants have 48 hours to make a movie. The idea is that to be fair everyone has roughly the same resources; everyone is restricted to the same genre, etc... How does this relate to the rule at hand? Well... does the use of historical figures give one story an unfair advantage? If you write a story where you have to spend some of your 1000 words to create a cast of fictional characters, but I use President Lincoln and General Grant as my characters, do I have an unfair advantage because I didn't have to explain who my characters are to the audience? At this point, I'm actually less concerned about this issue. I think there are lots of shortcuts an author can use to write a good story, just like using stock characters in the current challenge. One author can make that choice and another may not, but as long as the options are available to all, to me it seems to be fair enough. And I don't want the rules to stifle participation either. But I'm curious about how the other participants feel. Does anyone think someone would have an unfair advantage if they were able to use historical figures in their stories?

The second issue is, as far as I'm concerned, the more critical one. One of my favorite steampunk/alternate history novels is The Hollow Earth by Rudy Rucker (http://www.rudyrucker.com/thehollowearth/). I think this novel is great and I highly recommend giving it a look. It anchors itself in a historical setting, but then it has a voyage into the center of the Earth through a Symmes-type hole at the South Pole that reveals, what I think, is a fascinating world within. One of the main characters of the novel is Edgar Allan Poe, or rather and alternate reality version of Poe. My real point for sharing this example is to show that I understand and see the potential of using historical figures to tell a great story. But here's an interesting thing, Poe actually fictionalized himself in his own stories. His works are in the public domain, so in a sense, you could, like Rucker, be making use of the fictional Poe that was in historical Poe's stories. Other authors have fictionalized themselves similarly. Edgar Rice Burrough's who I referenced in this month's challenge often started his novels with a fictionalized version of himself receiving some letter or communiqué while sitting at his desk at his Tarzana Ranch. In a slightly different way, presidents, royalty, and historical celebrities have public images that may be in the public domain. But when you start talking about "third tier" historical figures as you call them, are these people's lives really legally available to be fictionalized? Would descendents of these people feel comfortable with your portrayal of their ancestors? Are you opening yourself up to some legal liability? Another example: it might be easy for us to come up with a science fiction story that includes H.G. Wells, one of the fathers of science fiction, as a character. Wells has been fictionalized a great deal too. But in the UK Wells' works are still under copyright, and his great grandson Simon Wells directed the 2002 adaptation of The Time Machine. My point is that someone like H.G. Wells might at first appear to be a very easily adaptable historical figure and yet, there's very likely an active estate who might have an interest in controlling portrayals of him. In this sense historical figures put us in almost the same territory as fan fiction. Don't you think?

If we could adequately address these issues, I think I'd feel more comfortable allowing historical figures in future contests.

davidsonhero wrote:...I think discussion of this rule would be good. There are certain concerns I have that would have to be alleviated before I made a change to this rule for future contests. ...The second issue is, as far as I'm concerned, the more critical one. ...In a slightly different way, presidents, royalty, and historical celebrities have public images that may be in the public domain. ...But when you start talking about "third tier" historical figures as you call them, are these people's lives really legally available to be fictionalized? Would descendents of these people feel comfortable with your portrayal of their ancestors? Are you opening yourself up to some legal liability? ...Another example: it might be easy for us to come up with a science fiction story that includes H.G. Wells, one of the fathers of science fiction, as a character. Wells has been fictionalized a great deal too. But in the UK Wells' works are still under copyright, and his great grandson Simon Wells directed the 2002 adaptation of The Time Machine. My point is that someone like H.G. Wells might at first appear to be a very easily adaptable historical figure and yet, there's very likely an active estate who might have an interest in controlling portrayals of him. In this sense historical figures put us in almost the same territory as fan fiction. Don't you think?

If we could adequately address these issues, I think I'd feel more comfortable allowing historical figures in future contests.

John

There's no easy answer. In the end the lawyers always win. (Did I pick the wrong profession to go into?!)

However, I added a couple of elipses to block out the contrasting points of your note - the "public image in the public domain" vs estates and liability. My story snip was basically intended in this public image capacity.

Interesting that your example was H. G. Wells, because Syfy just spent two years on Warehouse 13 making ... "that person" ... a woman! (And with one of the best runaway guest appearances ever!)

I do vaguely know that for big projects publishing houses do sometimes contact estates for rights. I think on some smaller stuff they don't.

"Back in easier days" there used to be fair leeway for fiction to take chances. Somehow, fairly recently, that's feeling tighter.

An interesting angle is the Civil War Re-Enactments. I'd bet a cupcake that those groups don't have a 200 page binder of rights clearances from all 188-ish people's descendants involved! So how do they do it, and not simple fiction writers?

Even if you/me/someone had a stock answer drafted a the first answer to any grumpy estates, tey can always just grind you down and we're all trying to be careful and not throw our dear ol' 'zine into hot water.

TaoPhoenix wrote:There's no easy answer. In the end the lawyers always win. (Did I pick the wrong profession to go into?!)...and we're all trying to be careful and not throw our dear ol' 'zine into hot water.

Just a couple more thoughts on this:

In the "Altered History" challenge, Nate required each story to use a historical figure that had died prior to 1910 and the story had to be set prior to 1910. That would have been 100 years prior to the challenge, a seemingly safe round number. In the United States, works published prior to 1923 are in the public domain. Many later works are also, but determining the copyright status becomes much trickier. Would using figures who died prior to 1923 be safe enough?

How you use a historical figure could make a difference. Compare and contrast the treatment of the 16th US president in Steven Spielberg's Lincoln and Abraham Lincoln: Vampire Hunter .

Then there are "personality rights":

The right of publicity, often called personality rights, is the right of an individual to control the commercial use of his or her name, image, likeness, or other unequivocal aspects of one's identity. It is generally considered a property right as opposed to a personal right, and as such, the validity of the Right of Publicity can survive the death of the individual (to varying degrees depending on the jurisdiction). In the United States, the Right of Publicity is a state law-based right, as opposed to federal, and recognition of the right can vary from state to state.[1]

Personality rights are generally considered to consist of two types of rights: the right of publicity, or to keep one's image and likeness from being commercially exploited without permission or contractual compensation, which is similar to the use of a trademark; and the right to privacy, or the right to be left alone and not have one's personality represented publicly without permission. In common law jurisdictions, publicity rights fall into the realm of the tort of passing off. United States jurisprudence has substantially extended this right.

A commonly cited justification for this doctrine, from a policy standpoint, is the notion of natural rights and the idea that every individual should have a right to control how, if at all, his or her "persona" is commercialized by third parties. Usually, the motivation to engage in such commercialization is to help propel sales or visibility for a product or service, which usually amounts to some form of commercial speech (which in turn receives the lowest level of judicial scrutiny).

...and...

In contrast with common law jurisdictions, most civil law jurisdictions have specific civil code provisions that protect an individual's image, personal data and other generally private information. Exceptions have been carved out of these general, broad privacy rights when dealing with news and public figures. Thus, while it may violate an ordinary citizen's privacy to speak about their medical records, one is generally allowed to report on more intimate details in the lives of celebrities and politicians.

Unlike most common law jurisdictions the personality rights in civil law are generally inheritable, thus one can make a claim against someone who invades the privacy of a deceased relative if the memory of their character is besmirched by such publication.

But then there are the following and other examples to contradict the above description:

In 1979, the Lugosi v. Universal Pictures decision by the California Supreme Court held that Bela Lugosi's personality rights could not pass to his heirs, as a copyright would have. The court ruled that under California law any rights of publicity, including the right to his image, terminated with Lugosi's death.

If someone could point me in the direction of some reasonable guidelines for writers to use, I'd take a look. Unfortunately, I really think this is a quagmire we're not going to be able to safely wade into. We have writers in different countries. Determining what is legal in each locale and what isn't is probably going to be just too complicated for us. In reality chances are probably small there'd ever be a problem, but, like you said Tao, we don't want to risk getting the 'zine in hot water.

A "work" becoming public domain in (1923?) is not the same at all as a "person" becoming "usable in all fiction in all cases wit no recourse ever". Nate's guess about the 100 years was based on a *guess* that people below X status do not in fact get grouchy over estate issues. (That's exactly my demographic on Capt. Marcy!)

Theoretically if the wheels moved at such quick speed that a writer could do rights checks and submit them, then the rules change. That's more 'zine territory when you can afford to burn 3 months on your story to dot i's and cross t's and copy-edit as well.

TaoPhoenix wrote:A "work" becoming public domain in (1923?) is not the same at all as a "person" becoming "usable in all fiction in all cases wit no recourse ever".

Agreed. I wasn't trying to imply they are the same. Copyright and personality rights are definitely not the same. I just figured that if we were picking an arbitrary cutoff date, 1923 would be as good as any. (i.e. use anyone dead before that date, but anyone alive after is off limits.)

As far as the cutoff date goes, maybe Nate's 100 years back isn't quite far enough to eliminate ALL danger of liability from descendents, but there must be some date that is. I'm sure the likes of Shakespeare, Homer, Plato, Marco Polo, Joan of Arc, Archimedes, and Christopher Columbus should be safe historical figures to use. If we could find some cutoff date that seemed reasonable to all of us, maybe we could allow some historical figures.

TaoPhoenix wrote:Theoretically if the wheels moved at such quick speed that a writer could do rights checks and submit them, then the rules change. That's more 'zine territory when you can afford to burn 3 months on your story to dot i's and cross t's and copy-edit as well.

It would be difficult to secure rights in the two weeks we have to write a flash story for the contest. But if you or anyone else would want to do that kind of leg work, and can clear the rights to use a historical figure in time, I will be happy to suspend the rule.

CHARACTERS & SETTING: No copyrighted characters or settings, or references thereto. Famous, non-copyrighted fictional characters like Santa Claus, or religious figures such as the Devil, named angels such as Gabriel, or gods like Thor, etc. as supporting characters at best and at my discretion. The Wicked Witch and Dracula may be in the public domain, but don't expect me to allow them. No person that was ever a "real life" human being may be used as a character, but can be referred to, as in "President Kennedy had declared it would be so." Except as noted above under non-copyrighted fictional persons, character names may not be copied from fiction or real life, even if changed, i.e. Char-less Darween. All non-copyrighted settings are ok. Famous, unique sites like Stonehenge may be used over and again. No fan fiction or sequels, so don't bother putting your story in the Land of Oz or that great place you thought up two challenges ago.

Read the above. It's simple and straight forward. Quit splitting hairs and making this more of a burden than it should be. Work with it otherwise well have 100 of letters complaining that this is or isn't in the rules or allowed or bla bla bla.

A "work" becoming public domain in (1923?) is not the same at all as a "person" becoming "usable in all fiction in all cases wit no recourse ever". Nate's guess about the 100 years was based on a *guess* that people below X status do not in fact get grouchy over estate issues. (That's exactly my demographic on Capt. Marcy!)

Yeah, I never heard of Capt. Marcy until you mentioned the name, and I'll bet I'm in the overwhelming majority.

However, the question is not whether the character is a household name; the question is whether that real-life-personage's HOUSEHOLD sees his name somewhere -- like here-- and doesn't like what was written. The objection needn't be rational, either. "You jerk, you got his hair parted wrong, I'm calling my lawyer! WAAAAH!!"

Theoretically if the wheels moved at such quick speed that a writer could do rights checks and submit them, then the rules change. That's more 'zine territory when you can afford to burn 3 months on your story to dot i's and cross t's and copy-edit as well.

"Theoretically" about sums it up. I've read recently (in regards to self-publishing) that it can take months to years to contact the holders of copyright interests to get permission for anything not covered under "fair use" (which is pretty limited and still doesn't guarantee safety from litigation).

My suggestion: if the character is obscure already anyway, just give 'em a different name and play dumb about it forever afterward.

I'll take RT's comments as a vote for "If it ain't broke, don't fix it."

I don't think it hurts to discuss this though. As writers it's good to have a handle on this issue in general; this is bigger than just the rules for the flash challenge. Discussing this with Tao has clarified a few points for me that I hadn't given a lot of thought to before. And those are points that will likely affect any alternate history challenges that I might potentially run in the future. So thank you Tao, I hope you feel like this issue has gotten a fair hearing. But, Richard, your point is duly noted. And Lester's comments seem to be along the same lines. Unless I hear an overwhelming outcry to figure out how to include historical figures, I don't see a reason to carry it any further--at least with regards to the flash contest rules.